Citation Nr: 1329192
Decision Date: 09/12/13 Archive Date: 09/20/13
DOCKET NO. 08-38 973 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for left ear hearing
loss.
2. Entitlement to service connection for right ear hearing
loss.
3. Entitlement to service connection for GERD, to include
as due to undiagnosed illness.
4. Entitlement to service connection for diabetes mellitus,
to include as due to undiagnosed illness.
5. Whether new and material evidence has been received to
reopen service connection for sleep apnea, to include as due
to undiagnosed illness.
6. Entitlement to service connection for sleep apnea, to
include as due to undiagnosed illness.
7. Whether new and material evidence has been received to
reopen service connection for joint pain with muscle aches,
to include as due to undiagnosed illness.
8. Entitlement to service connection for joint pain with
muscle aches, other than disability of the bilateral ankles,
to include as due to undiagnosed illness.
9. Whether new and material evidence has been received to
reopen service connection for fatigue, to include as due to
undiagnosed illness.
10. Entitlement to service connection for fatigue, to
include as due to undiagnosed illness.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Catherine Cykowski, Counsel
INTRODUCTION
The Veteran had active duty service from May 1988 to May
1992.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from a November 2007 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri.
A review of the record indicates that service connection has
been granted for left and right ankle strain. Accordingly,
the issue of service connection for joint pain, to include
as due to undiagnosed illness, has been characterized to
reflect the grant of service connection for those
disabilities.
In this case, there is sufficient evidence of record to
decide the claim for service connection for hearing loss of
the right ear. Because additional development is warranted
with respect to the claim for service connection for hearing
loss of the left ear, the issues of service connection for
left ear hearing loss and service connection for right ear
hearing loss are listed separately.
The issues of entitlement to service connection for
obstructive sleep apnea, left ear hearing loss and fatigue
are addressed in the REMAND portion of the decision below
and are REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC.
FINDINGS OF FACT
1. The Veteran served in the Southwest Theater of
Operations during the Persian Gulf War.
2. The Veteran does not have a current disability of right
ear hearing loss as defined by VA regulation.
3. The most probative evidence of record shows no
relationship between current GERD and active service.
4. Diabetes mellitus did not manifest during service or
within the one year of separation from service.
5. The most probative evidence of record shows no
relationship between current diabetes mellitus and active
service.
6. An unappealed September 1997 rating decision denied
service connection for fatigue as due to undiagnosed
illness, service connection for sleep apnea as due to
undiagnosed illness and service connection for joint pain to
include back pain and muscle aches, as due to undiagnosed
illness.
7. The evidence received since the September 1997 rating
decision is neither cumulative nor redundant and raises a
reasonable probability of substantiating claims for service
connection for sleep apnea, to include as due to undiagnosed
illness, fatigue, to include as due to undiagnosed illness
and service connection for joint pain and muscle aches, to
include as due to undiagnosed illness.
8. The most probative evidence of record shows no
relationship between a current bilateral shoulder
disability, diagnosed as bilateral shoulder strain, and
active service.
9. The most probative evidence of record shows no
relationship between a current bilateral knee disability,
diagnosed as bilateral knee strain, and active service.
10. Lumbar spine degenerative joint disease did not
manifest during service or within one year of separation
from service.
11. The most probative evidence of record shows no
relationship between lumbar spine degenerative joint disease
and active service.
CONCLUSIONS OF LAW
1. The criteria for service connection for right ear
hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159,
3.303, 3.385 (2012).
2. GERD was not incurred in or aggravated by service, nor is
such disability due to undiagnosed illness. 38 U.S.C.A. §§
1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§
3.102, 3.159, 3.303 (2012).
3. Diabetes mellitus was not incurred in or aggravated by
service, nor is such disability due to undiagnosed illness.
38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38
C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.317.
4. The September 1997 rating decision is final. 38
U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302,
20.1103 (2012).
5. New and material evidence has been received to reopen
claims of entitlement to service connection for sleep apnea,
to include as due to undiagnosed illness, joint pain with
muscle aches, to include as due to undiagnosed illness and
fatigue, to include as due to undiagnosed illness. 38
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).
6. Joint pain with muscle aches was not incurred in or
aggravated by service, nor is such disability due to
undiagnosed illness. 38 U.S.C.A. §§ 1101, 1110, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.307, 3.309, 3.317.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VA's Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations imposes obligations on VA to
provide claimants with notice and assistance. 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012);
38 C.F.R. §§ 3.102 , 3.156(a), 3.326(a) (2012).
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claims. See 38 U.S.C.A. § 5103(a) (West
2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi,
16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet.
App. 112, 120-21 (2004) (Pelegrini II), the Court clarified
that VA must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claims; (2) that VA will seek to provide; and (3) that
the claimant is expected to provide.
The United States Court of Appeals for Veterans Claims
(Court) issued a decision in the appeal of Dingess v.
Nicholson, 19 Vet. App. 473 (2006), which held that the
notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim, including the degree of disability and the effective
date of an award. Those five elements include: (1) veteran
status;
(2) existence of a disability; (3) a connection between a
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability.
The Court has ruled that the VCAA requires additional notice
when a claimant seeks to reopen a previously denied claim.
In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court
held that VA must examine the basis for a denial of a
previously disallowed claim and provide the veteran with
notice of the evidence of service connection found lacking
in the previous denial. Kent at 10.
In this case, in an August 2006 letter, the RO provided
notice to the Veteran needed to substantiate claims for
service connection for joint pain, sleep apnea, hearing loss
and diabetes. The August 2006 letter advised the Veteran
what information and evidence must be submitted by the
Veteran and what evidence VA would obtain. This letter
included provisions for disability ratings and for effective
dates.
The August 2006 letter did provide the Veteran with notice
of the evidence of service connection found lacking in the
prior denial of the claims for service connection for
fatigue, sleep apnea and joint pain. The Veteran is not
prejudiced by the lack of Kent compliant notice because the
Board has reopened the claims for service connection for
fatigue, sleep apnea and joint pain. Therefore, any notice
deficiency with respect to the Veteran's claims to reopen is
harmless.
The Board is also satisfied VA has made reasonable efforts
to obtain relevant records and evidence. The information
and evidence that has been associated with the claims file
includes the Veteran's service treatment records, Social
Security records and private treatment records. The Veteran
was afforded a VA examination for hearing loss in March
2010, and an addendum opinion was obtained in May 2010. The
Veteran was afforded a VA examination for GERD, diabetes
mellitus and joint pain in November 2012. To that end, when
VA undertakes to provide a VA examination or obtain a VA
opinion, it must ensure that the examination or opinion is
adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
The May 2010 audiological examination is adequate to decide
the claim for service connection for right ear hearing loss.
The VA examiner reviewed the claims file, including service
treatment records, and performed an audiological evaluation
and provided a medical opinion which establishes that a
current hearing loss disability of the right ear, as defined
by § 3.385, is not present. The November 2012 VA examiner
reviewed the claims file and discussed the history of the
claimed GERD, diabetes mellitus and joint pain disabilities.
The VA examiner provided a medical opinion which was
predicated on a full reading of the medical records in the
Veteran's claims file. The VA nexus opinion provided
considered all of the pertinent evidence of record, to
include service treatment records, private treatment
records, and the statements of the Veteran, and provided a
complete rationale for the opinion stated, relying on and
citing to the records reviewed. Accordingly, the Board
finds that VA's duty to assist with respect to obtaining a
VA examination or opinion with respect to the issue on
appeal has been met. 38 C.F.R. § 3.159(c)(4). For these
reasons, the Board finds that VA has fulfilled the duties to
notify and assist the Veteran.
II. Analysis of Claims
Claims to Reopen
In a September 1997 rating decision, the RO denied service
connection for fatigue, sleep apnea and joint pain, to
include back pain, and muscle aches.
In the September 1997 rating decision, the RO found that
there was no evidence of a chronic condition manifested by
fatigue shown to have been incurred in or caused by service.
The RO also found that service connection for fatigue as due
to undiagnosed illness was not warranted because there was
no objective evidence of an undiagnosed illness involving
fatigue in the service treatment record or the evidence
available for review.
The September 1997 rating decision found that service
treatment records were negative for complaints, treatment or
diagnosis of a sleep disorder. The rating decision also
found that there were no objective findings or subjective
complaints of a sleep disorder shown on a VA Persian Gulf
War protocol examination.
The September 1997 rating decision found that the Veteran
did not have a chronic disability manifested by joint pain
and muscle aches. The rating decision found that the
Veteran had acute complaints of right ankle pain, left ankle
strain, shin splints and right shoulder pain during service,
which resolved without permanent residuals. The rating
decision found that the Veteran did not have an undiagnosed
illness involving joint pain, back pain and muscle aches.
In a September 1997 letter, the RO provided the Veteran with
notice of the rating decision and his appellate rights. The
Veteran did not submit a timely notice of disagreement with
the September 1997 rating decision. Accordingly, the
September 1997 rating decision is final. 38 U.S.C.A. §
7105(c) (West 2002); 38 C.F.R.
§§ 3.104, 20.302, 20.1103 (2012).
The evidence of record at the time of the September 1997
rating decision included service treatment records, VA
outpatient treatment records dated from 1996 to 1997 and lay
statements.
Generally, a claim which has been denied in a decision of
the RO may not thereafter be reopened and allowed based on
the same record. 38 U.S.C.A. § 7105. However, under 38
U.S.C.A.§ 5108, if new and material evidence is presented or
secured with respect to a claim which has been disallowed,
the Secretary shall reopen the claim and review the former
disposition of the claim.
In September 2006, the Veteran sought to reopen the claims
for service connection for fatigue, sleep apnea and joint
pain. A claim that is the subject of a prior final denial
may be reopened if new and material evidence is received
with respect to that claim. Once a claim is reopened, the
adjudicator must review it on a de novo basis, with
consideration given to all of the evidence of record. 38
U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273
(1996).
For claims filed on or after August 29, 2001, as in this
case, new evidence means existing evidence not previously
submitted to agency decisionmakers. Material evidence means
existing evidence that, by itself or when considered with
the previous evidence of record, relates to an unestablished
fact necessary to substantiate the claim. New and material
evidence can be neither cumulative, nor redundant of the
evidence of record at the time of the last prior final
denial of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a)(2012).
The evidence that is considered to determine whether new and
material evidence has been received is the evidence received
since the last final disallowance of the appellant's claim
on any basis. Evans, 9 Vet. App. 273 (1996). This evidence
is presumed credible for the purposes of reopening an
appellant's claim, unless it is inherently false or untrue,
or, if it is in the nature of a statement or other
assertion, it is beyond the competence of the person making
the assertion. Duran v. Brown, 7 Vet. App. 216 (1995);
Justus v. Principi, 3 Vet. App. 510 (1992). The Board has
an obligation to make an independent determination of its
jurisdiction regardless of findings or actions by the RO.
See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
The evidence received since the prior final denial of
service connection for fatigue, sleep apnea, and joint pain
and muscle aches includes private medical records from Dr.
J.E., dated from 1999 to 2005, VA outpatient treatment
records, treatment records from St. Joseph's Hospital, dated
in 1996, reports of VA examinations dated in May 2007 and
November 2012, and written statements submitted by the
Veteran.
Private medical records from Dr. J.E. reflect treatment of
asthma and sinus congestion. The treatment records from St.
Joseph's Hospital, dated in 1996, reflect a diagnosis of a
sleep disorder. A VA examination dated in May 2007 noted a
diagnosis of sleep apnea, which was treated with CPAP since
1996. VA outpatient treatment records show complaints and
treatment of sleep apnea and lumbar spine pain.
The November 2012 VA examination provides medical opinions
regarding whether fatigue, sleep apnea and joint pain are
related to undiagnosed illness or related to service.
The Veteran's statements reflect his contention that his
joint pain, sleep apnea and fatigue are related to exposure
to environmental hazards during service in Kuwait.
The treatment records from Dr. J.E. are new, but they are
not material. Those records primarily reflect treatment for
sinusitis and asthma are therefore not material to the
claims for service connection for fatigue, sleep apnea and
joint pain.
The 1996 private treatment records and 2007 VA examination
are both new and material, as they pertain to the issue of a
current diagnosis of a sleep disorder. The report of VA
examination in November 2012 is both new and material, as
the VA examination provided a medical opinion addressing
whether current sleep apnea, joint pain and fatigue are
related to service.
Having determined that new and material evidence has been
received, the Board may reopen the claims for service
connection for fatigue, to include as due to undiagnosed
illness, joint pain, to include as due to undiagnosed
illness and sleep apnea, to include as due to undiagnosed
illness and consider the claims on the merits.
Service Connection Laws and Regulations
Establishing service connection generally requires medical
or, in certain circumstances, lay evidence of (1) a current
disability; (2) an in-service incurrence or aggravation of a
disease or injury; and (3) a nexus between the claimed in-
service disease or injury and the present disability. See
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009);
Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v.
Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996) (table).
For certain chronic diseases, including arthritis and
diabetes mellitus, service connection may be granted if the
disease becomes manifest to a compensable degree within one
year following separation from service. 38 U.S.C.A. §§
1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§
3.307, 3.309 (2012).
Under 38 C.F.R. § 3.303(b), if a chronic disease or injury
is shown in service, subsequent manifestations of the same
chronic disease or injury at any later date, however remote,
may be service connected, unless clearly attributable to
intercurrent causes. For a showing of a chronic disorder in
service, the mere use of the word chronic will not suffice;
rather, there is a required combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time. The
provisions of 38 C.F.R. § 3.303(b) have been interpreted as
an alternative to service connection only for the specific
chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker
v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
In this case, there are current diagnoses of diabetes
mellitus and degenerative changes of the lumbar spine.
Diabetes mellitus and arthritis are "chronic diseases"
listed under 38 C.F.R. § 3.309(a). Therefore, § 3.303(b)
applies to the claims for service connection for diabetes
mellitus and joint pain of the lumbar spine. Walker v.
Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
GERD, bilateral shoulder strain and bilateral knee strain
are not disabilities which are listed under 38 C.F.R. §
3.309(a); therefore, the provisions of 38 C.F.R.
§ 3.303(b) pertaining to continuity of symptomatology do not
apply to the claims for service connection for GERD and
joint pain of the shoulders and knees.
Where a veteran who served for ninety days or more during a
period of war (or during peacetime service after December
31, 1946) develops certain chronic diseases, such as
arthritis and sensorineural hearing loss, to a degree of 10
percent or more within one year from separation from
service, such diseases may be presumed to have been incurred
in service even though there is no evidence of such disease
during the period of service. This presumption is
rebuttable by affirmative evidence to the contrary. See 38
U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§
3.307, 3.309 (2012).
In cases involving service connection for hearing loss,
impaired hearing will be considered to be a disease when the
auditory threshold in any of the frequencies 500, 1000,
2000, 3000, or 4000 Hertz is 40 decibels or greater; or
when the auditory thresholds for at least three of the
frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26
decibels or greater; or when speech recognition scores using
the Maryland CNC Test are less than 94 percent. 38 C.F.R. §
3.385 (2012).
Service connection may be established for a Persian Gulf
veteran who exhibits objective indications of chronic
disability resulting from undiagnosed illness which became
manifest either during active service in the Southwest Asia
theater of operations during the Persian Gulf War, or to a
degree of 10 percent, or more, not later than December 31,
2016; and which, by history, physical examination, and
laboratory tests, cannot be attributed to any known clinical
diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.
The term Persian Gulf veteran means a veteran who served on
active military, naval, or air service in the Southwest Asia
theater of operations during the Persian Gulf War. The
Southwest Asia theater of operations refers to Iraq, Kuwait,
Saudi Arabia, the neutral zone between Iraq and Saudi
Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the
Gulf of Aden, the Gulf of Oman, the Persian Gulf, the
Arabian Sea, the Red Sea, and the airspace above these
locations. 38 C.F.R.
§ 3.317(e) (2012).
In rendering a decision on appeal the Board must also
analyze the credibility and probative value of the evidence,
account for the evidence which it finds to be persuasive or
unpersuasive, and provide the reasons for its rejection of
any material evidence favorable to the claimant. Gabrielson
v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v.
Derwinski, 1 Vet. App. 49, 57 (1990). Competency of
evidence differs from weight and credibility. Competency is
a legal concept determining whether testimony may be heard
and considered by the trier of fact, while credibility is a
factual determination going to the probative value of the
evidence to be made after the evidence has been admitted.
Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown,
6 Vet. App. 465, 469 (1994); see also Cartright v.
Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may
affect the credibility of testimony, it does not affect
competency to testify").
Service Connection for Right Ear Hearing Loss
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, 4000 Hertz is 40 decibels or greater; or when
the auditory thresholds for at least three of the
frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26
decibels or greater; or when speech recognition scores using
the Maryland CNC Test are less than 94 percent. 38 C.F.R. §
3.385 (2012); see also Palczewski v. Nicholson, 21 Vet. App.
174, 178-80 (2007) (specifically upholding the validity of
38 C.F.R. § 3.385 to define hearing loss for VA
compensation purposes).
The United States Court of Appeals for Veterans Claims
(Court) has held that "the threshold for normal hearing is
from 0 to 20 dBs [decibels], and higher threshold levels
indicate some degree of hearing loss." See Hensley v.
Brown, 5 Vet. App. 155, 157 (1993).
In this case, there is no competent evidence of hearing loss
in the right ear for VA purposes at any time during the
appeal period. The relevant question at issue is whether
the Veteran has a current right hearing disability at
present, as defined by 38 C.F.R. § 3.385, so as to meet the
criteria for service connection for defective hearing. The
Veteran had a VA audiological examination in May 2010, and
the findings of that examination did not show a right ear
hearing loss for VA compensation purposes. 38 C.F.R. §
3.385. The VA examiner indicated that the pure tone
thresholds indicated normal hearing in the right ear.
Thus, the findings do not satisfy the criteria for a hearing
loss for VA purposes. 38 C.F.R. § 3.385. Given the lack of
competent evidence showing that the Veteran has a current
hearing loss disability in the right ear at present, as
defined in 38 C.F.R.
§ 3.385, the claim for defective hearing of the right ear
must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992).
Service Connection for GERD
Service treatment records do not reflect complaints,
treatment, or diagnoses of GERD. A report of medical
history completed in conjunction with the separation
examination reflects that the Veteran denied a history of
indigestion.
Post service VA and private treatment records reflect
treatment and diagnoses of GERD.
In November 2012, the Veteran had a VA examination. The VA
examiner indicated that the claims file was reviewed. The
Veteran reported GERD, with a date of diagnosis in 1993.
The VA examiner opined that GERD is more likely than not due
to decreased esophageal sphincter tone and less likely than
not due to active duty/ burn pit exposure.
As noted above, service connection may be established for a
Persian Gulf veteran who exhibits objective indications of
chronic disability resulting from undiagnosed illness which
became manifest either during active service in the
Southwest Asia theater of operations during the Persian Gulf
War, or to a degree of 10 percent, or more, not later than
December 31, 2011; and which, by history, physical
examination, and laboratory tests, cannot be attributed to
any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R.
§ 3.317(a)(1). The record contains a current diagnosis of
GERD. In this case, the evidence of record reflects that
the Veteran's symptoms have been attributed to a known
clinical diagnosis of GERD. Thus, the evidence does not
support the theory of entitlement which attributes GERD to
an undiagnosed illness.
The VA examiner opined that GERD is not related to burn pit
exposure in service but rather is related to esophageal
sphincter tone. There is no probative evidence to the
contrary. Therefore, service connection is also not
warranted for GERD on the basis of direct service
connection.
The Board has considered the Veteran's lay statements in
support of his claim. The Veteran has indicated that he was
exposed to environmental hazards in Kuwait, such as burning
oil and chemicals, and believes that GERD is related to
those exposures. The Veteran is competent to report that he
was exposed to burning oil during his active service in
Kuwait. He is also competent to report his GERD symptoms.
See Layno v. Brown, 6 Vet. App. 465 (1994). However, as a
layperson, the Veteran is without the appropriate medical
training and expertise to offer an opinion on a medical
matter, such as the question of causation of GERD, which
involves a complex medical issue. Jandreau v. Nicholson,
492 F.3d 1372 (Fed. Cir. 2007).
Based on the foregoing, the Board finds that there is no
probative medical evidence of record linking the Veteran's
GERD to active service, to include as due to an undiagnosed
illness. The evidence in this case is not so evenly
balanced so as to allow application of the benefit-of-the-
doubt rule as required by law and VA regulations. See 38
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Therefore,
the preponderance is against the Veteran's claim for
entitlement to service connection for GERD, and the claim
must be denied.
Service Connection for Diabetes Mellitus
Service treatment records do not reflect complaints,
findings or diagnoses of diabetes mellitus.
There is no evidence that diabetes mellitus was manifested
within a year following the Veteran's discharge from active
duty; therefore, service connection for diabetes mellitus on
a presumptive basis is not warranted. 38 C.F.R. §§ 3.307,
3.309.
An initial post-service diagnosis of diabetes mellitus is
shown in post-service treatment records dated in 2004. VA
outpatient treatment records, dated in August 2004, reflect
notations of "new onset diabetes."
The Veteran had a VA examination in November 2012. The VA
examiner indicated that the claims file was reviewed. The
VA examiner noted a diagnosis of diabetes mellitus, type II.
The date of diagnosis was August 2004. The VA examiner
opined that diabetes mellitus is less likely than not
related to active duty. The VA examiner explained that it
is more likely that diabetes mellitus is due to obesity.
The VA examiner explained that, until recently, the Veteran
had not been diet compliant.
As noted above, service connection may be established for a
Persian Gulf veteran who exhibits objective indications of
chronic disability resulting from undiagnosed illness which
became manifest either during active service in the
Southwest Asia theater of operations during the Persian Gulf
War, or to a degree of 10 percent, or more, not later than
December 31, 2011; and which, by history, physical
examination, and laboratory tests, cannot be attributed to
any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R.
§ 3.317(a)(1). In this case, there is a known clinical
diagnosis of diabetes mellitus. Thus, the evidence does not
support the theory of entitlement which attributes diabetes
mellitus to an undiagnosed illness.
The evidence in this case does not relate current diabetes
mellitus to active duty service. The VA examiner opined
that this is not related to active duty but rather is
related to obesity. Therefore, the Board concludes that the
evidence does not support a finding of direct service
connection for diabetes mellitus.
Based on the foregoing, the Board finds that service
connection for diabetes mellitus may not be presumed, and
there is no probative medical evidence of record linking the
Veteran's diabetes mellitus to active service, to include as
due to an undiagnosed illness. The evidence in this case is
not so evenly balanced so as to allow application of the
benefit-of-the-doubt rule as required by law and VA
regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102
(2012). Therefore, the preponderance is against the
Veteran's claim for entitlement to service connection for
diabetes mellitus, and the claim must be denied.
Service Connection for Joint Pain with Muscle Aches
The Veteran claims that joint pain and muscle aches are
related to active service. The November 2012 VA examination
reflects that the Veteran asserts that joint pain of the
lumbar spine, hips, bilateral knees and bilateral shoulders
is a result of carrying heavy gear and ammunition. The
Veteran further asserts that joint pain is related to
exposure to environmental hazards during service.
Service treatment records show that the Veteran reported
complaints of right shoulder strain. In June 1989, the
Veteran reported right shoulder discomfort of approximately
two months in duration. Physical examination of the right
shoulder showed no deformities. The Veteran had equal
strength of both upper extremities. There was crepitus
bilaterally upon rotation of both shoulders. A diagnosis of
right shoulder strain was noted. In June 1989, the Veteran
had a right shoulder x-ray to rule out bone damage. The x-
ray report noted normal findings regarding the right
shoulder.
A report of medical history completed in conjunction with
the Veteran's retirement examination April 1992 reflects
that he denied swollen or painful joints. He denied bone
and joint deformities and also denied painful or "trick"
shoulder or elbow and recurrent back pain. No diagnoses of
a joint disability were noted at separation.
These findings do not show the incurrence of a chronic
lumbar spine disease in service. Moreover, because no
lumbar spine disability was reported or found on separation
from service, they suggest that he did not have a chronic
lumbar spine disability.
In this case, the evidence of record does not show a
diagnosis of arthritis of any joint within one year of
separation from service. Accordingly, service connection
for arthritis may not be presumed. §§ 3.307, 3.309.
The Board finds that continuity of lumbar spine symptoms
since service is not demonstrated. The Veteran's more
recent report of the onset of back pain in 1992 or 1993
differs with the history reported in VA treatment records.
The treatment records in evidence reflect that the Veteran
initially reported post-service complaints of a back
disability in 2002. A VA outpatient treatment record dated
in February 2002 reflects that the Veteran reported pain in
the lower back since February 2002. The Veteran did not
report a history of back pain since service. The VA
outpatient treatment records dated in February 2002 reflect
the Veteran's report of onset of back pain symptoms in 2002.
In August 2004, the Veteran reported that he had worked as a
concrete truck driver, and he was out of work since December
2003 due to injuries. He reported that he was treated
through workers compensation. In this case, the Board finds
the Veteran's report of back pain symptoms in 2002 and of
back injury in December 2003, which were made for treatment
purposes, more probative with respect to the onset of his
back pain symptoms. The Board therefore finds that
continuity of lumbar spine symptoms since service is not
established.
Upon VA examination in December 2012, the VA noted that the
Veteran was diagnosed with lumbar spondylosis in 2011. The
Veteran reported the onset of low back pain in 1992 and 1993
when he returned from Kuwait and noted pain with running.
The Veteran reported that he wore 80 pounds of extra gear
and weapons and ammunition during his deployment. He
reported that he did not seek medical attention for his back
in service.
The VA examiner opined that it is less likely than not that
the Veteran's claimed back condition is related to hazardous
environmental exposure during Gulf War Service. The VA
examiner reasoned that there is no plausible medical
connection between burn pit inhalational exposures and
lumbar spine arthritis or disc degeneration.
The VA examiner further opined that it is less likely than
not that the Veteran's claimed back condition is related to
his active military service. The VA examiner noted that
there is no documentation of back injury during active
service, nor did the Veteran seek medical attention for
recurrent back pain during service. The VA examiner
indicated that the Veteran was noted to be 60 pounds
overweight for military standards during active duty and had
progressively gained weight since then. The VA examiner
further observed that VA medical records dated in August
2004 showed that the Veteran worked as a concrete truck
driver but was out of work since December 2003 due to a back
injury. The VA examiner opined that it is more likely that
the Veteran's current back problems are due to morbid
obesity combined with a work-related back injury after
service.
Upon VA examination in December 2012, the VA examiner noted
that the Veteran reported that his "hip pain" came from his
lower back. The VA examiner indicated that this would be
lumbar radicular in nature and therefore referred the
findings to the spine examination.
Upon VA examination in December 2012, the Veteran reported a
history of the onset of bilateral knee pain in 1993. The
Veteran reported that there was no direct trauma, but he
reported that he had strenuous physical activity when
wearing heavy gear and ammunition during deployment to
Kuwait. The Veteran reported that he was treated for knee
pain while running in service. He reported that, after
service, he was treated with ibuprofen for bilateral knee
pain. The Veteran reported that x-rays of both knees showed
arthritis approximately 7 to 8 years ago. The Veteran
reported that his symptoms were similar in both knees.
The VA examiner diagnosed bilateral knee strain. The VA
examiner opined that it is less likely than not that the
Veteran's claimed knee condition is related to hazardous
exposure during his Gulf War Service. The VA examiner
stated that there is no plausible medical connection between
burn pit inhalational exposures and knee joint pathology.
The VA examiner opined that it is less likely than not that
the Veteran's claimed knee condition is related to his
active military service. The VA examiner reasoned that
there was no documentation of knee trauma during active
service, and no treatment entries for knee problems in the
service treatment records despite numerous entries for ankle
problems. The VA examiner opined that the Veteran's current
knee pain issues are therefore more likely caused by the
loadbearing stresses of morbid obesity.
Upon VA examination in December 2012, the Veteran reported a
history of aching pain of both shoulders since the early
1990's, after his return from the Gulf. The Veteran
reported that there was no direct trauma but that he carried
a heavy gear pack during his deployment. The Veteran
reported that he injured his right shoulder while he was in
Okinawa during service. The Veteran reported that he was
treated at the VA for bilateral shoulder pain in the mid-
1990's but did not have x-rays or MRI's. The Veteran
reported that he also saw private doctors for shoulder pain
in the same time frame. The Veteran denied a history of
dislocations or of direct trauma.
The VA examiner diagnosed bilateral shoulder strain. The VA
examiner indicated that degenerative or traumatic arthritis
of the shoulders was not documented. The VA examiner opined
that it is less likely than not that the Veteran's claimed
shoulder condition is related to hazardous environmental
exposure during his Gulf War service. The VA examiner
stated that there is no plausible medical connection between
burn pit inhalational exposures and shoulder joint
pathology.
The VA examiner further opined that it is less likely than
not that the Veteran's claimed shoulder condition is related
to his active service. The VA examiner noted that the
service treatment records documented evaluation for right
shoulder pain after a fall during a sports activity in June
1989, with negative x-rays, but made no further mention of
recurrent or ongoing shoulder problems for the remainder of
his active service. The VA examiner noted that the current
x-rays were normal. The VA examiner noted that the Veteran
was already obese by the time he left active duty service.
The VA examiner noted that the Veteran worked as a concrete
truck driver after service, which should have entailed
pulling himself up into the cab of a truck repeatedly, among
other strenuous use activities of the arms and shoulders.
The VA examiner noted that the Veteran uses his arms to push
himself up out of chairs because of his morbid obesity. The
VA examiner opined that it is more likely than not that his
bilateral shoulder strain is a result of overuse of both
arms due to the logistic difficulty of moving his very large
body habitus.
In this case, the Veteran's claimed joint disabilities are
attributed to known diagnoses of lumbar spine arthritis,
lumbar radiculopathy, bilateral knee strain and bilateral
shoulder strain. As the record contains current diagnoses
for the claimed joint disorders, service connection is not
warranted based upon undiagnosed illness.
The Veteran submitted a statement from a private physician,
Dr. Lippman, dated in June 2013. Dr. Lippman noted that the
Veteran used an 80 pound backpack during service as a ground
guide/ advance party, while serving in the Marines. Dr.
Lippman opined that this created the Veteran's back issues.
Service connection is not warranted on a direct basis, as
the weight of the competent medical evidence is against a
finding that a current joint pain disorder is related to
service. The November 2012 VA examiner concluded that the
disorders of the lumbar spine, bilateral shoulders and
bilateral knees are not related to service.
In this case, there is conflicting medical evidence with
respect to whether the Veteran's current lumbar spine
disability is related to service. It is the responsibility
of the Board to assess the credibility and weight to be
given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-
70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93
(1992)). The probative value of medical evidence is based
on the physician's knowledge and skill in analyzing the
data, and the medical conclusion the physician reaches; as
is true of any evidence, the credibility and weight to be
attached to medical opinions are within the province of the
Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471
(1993). The Board may appropriately favor the opinion of
one competent medical authority over another. See Owens v.
Brown, 7 Vet. App. 429, 433 (1995). The Board, however, may
not reject medical opinions based on its own medical
judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also
Colvin v. Derwinski, 1 Vet. App 171 (1991). Greater
weight may be placed on one physician's opinion over another
depending on factors such as reasoning employed by the
physicians and whether or not and the extent to which they
reviewed prior clinical records and other evidence.
Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative
value of a medical opinion is generally based on the scope
of the examination or review, as well as the relative merits
of the expert's qualifications and analytical findings, and
the probative weight of a medical opinion may be reduced if
the examiner fails to explain the basis for an opinion.
Sklar v. Brown, 5 Vet. App. 140 (1993).
The November 2012 VA medical opinion was based upon a review
of the prior clinical records, including service treatment
records and post-service VA and private treatment records.
The opinion by Dr. Lippman did not address the prior
clinical records for the lumbar spine. The opinion also did
not address the Veteran's reported post-service back injury.
Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the
probative value of a medical opinion comes from when it is
the factually accurate, fully articulated, and sound
reasoning for the conclusion, not the mere fact that the
claims file was reviewed). The Board greater probative
weight to the November 2012 VA examiner's opinion.
The Board has considered the Veteran's statements, in which
he indicated that he has joint pain from carrying heavy gear
and ammunition when he was in service and that his joint
pain may be related to exposure to burning oil in Kuwait.
As noted previously, the Veteran is competent to report that
he was exposed to burning oil, and he is competent to report
that he has experienced joint pain. Layno, supra.
However, as a layperson, the Veteran is without the
appropriate medical training and expertise to offer an
opinion on a medical matter, such as the question of
causation of joint pain, which involves a complex medical
issue. Jandreau, supra.
Based on the foregoing, the Board finds that service
connection for degenerative arthritis of the lumbar spine
may not be presumed. The Board finds that there is no
probative medical evidence of record linking current joint
pain with muscle aches to service, to include as due to an
undiagnosed illness. The evidence in this case is not so
evenly balanced so as to allow application of the benefit-
of-the-doubt rule as required by law and VA regulations.
See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).
Therefore, the preponderance is against the Veteran's claim
for entitlement to service connection for joint pain with
muscle aches, and the claim must be denied.
ORDER
Service connection for right ear hearing loss is denied.
Service connection for GERD is denied.
Service connection for diabetes mellitus is denied.
Entitlement to service connection for joint pain with muscle
aches is denied.
REMAND
The Board finds that additional development is necessary
with regard to the claims for service connection for left
ear hearing loss, sleep apnea and fatigue.
Left Ear Hearing Loss
The Veteran had a VA examination in May 2010. The VA
examiner indicated that the claims file was reviewed. The
VA examiner noted that the audiometric data indicated normal
hearing bilaterally from 500-6000 Hertz at entrance in
November 1987, in subsequent audiograms in March 1988, May
1988, June 1989, and March 1992 and upon separation in April
1992. The VA examiner noted that the Veteran was an ear,
nose and throat specialist in March 1988 and did not report
hearing loss or tinnitus. The VA examiner opined that, due
to normal hearing at separation from the military and no
evidence of complaints of either condition in the service
medical records, it was the examiner's opinion that hearing
loss was less likely than not related to service.
In this case, the service treatment records show that an
audiogram in June 1989 noted a threshold shift in the left
ear. In providing the opinion, the May 2010 VA examiner did
not consider the Veteran's in-service threshold shift and as
a result, the examination is inadequate. Therefore, a new
opinion is needed which considers the Veteran's in-service
threshold shift. See Barr v. Nicholson, 21 Vet. App. 303,
311 (2007) (once the VA undertakes to provide an examination
when developing a service connection claim, even if not
statutorily obligated to do so, it must provide an adequate
one or, at a minimum, notify the claimant why one will not
or cannot be provided).
Service Connection for Sleep Apnea and Service Connection
for Fatigue
In the substantive appeal dated in December 2008, the
Veteran stated that his sinusitis and asthma create a
problem with his sleep apnea. The Veteran is service-
connected for sinusitis and asthma. The Board finds that
this evidence reasonably raises the issue of secondary
service connection under 38 C.F.R. § 3.310, as to whether
sleep apnea is caused or aggravated by a service-connected
sinusitis or asthma.
The Board thus finds that appropriate notification and
development on the secondary service connection theory is
required prior to further Board action on the claim. See
Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (although
there may be multiple theories or means of establishing
entitlement to a benefit for a disability, if the theories
all pertain to the same benefit for the same disability,
they constitute the same claim). The Veteran should be
provided with VCAA notice of the evidence necessary to
substantiate a claim for secondary service connection. A
new VA examination is necessary to address the issue of
secondary service connection, which has not been addressed
by the prior VA examination.
The November 2012 VA medical opinion concluded that fatigue
is due, in part, to obstructive sleep apnea. Therefore, the
Veteran's claim of entitlement to service connection for
fatigue is inextricably intertwined with the claim for
service connection for obstructive sleep apnea. Harris v.
Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "
inextricably intertwined " when they are so closely tied
together that a final Board decision on one issue cannot be
rendered until the other issue has been considered).
Therefore, action on the claim for service connection for
fatigue is deferred pending additional development of the
claim for service connection for sleep apnea.
Accordingly, the case is REMANDED for the following action:
1. Send the Veteran VCAA notice
regarding the evidence necessary to
establish entitlement to service
connection for sleep apnea, to include
as secondary to his service-connected
asthma and sinusitis.
2. Schedule the Veteran for an
appropriate VA examination to determine
the etiology of any diagnosed left ear
hearing loss. The claims file should
be provided for the examiner's review
in conjunction with the examination,
and the examination report should
indicate that the claims file was
reviewed.
3. The examiner is requested to
provide an opinion as to whether any
current left ear hearing loss is at
least as likely as not etiologically
related to the Veteran's active
military service, including the
acoustic trauma from artillery noise
during service. In addressing this
issue, the VA examiner should
specifically address the threshold
shift that was noted in a service
audiogram in June 1989. The VA
examiner should provide a detailed
rationale for the opinion.
If an opinion cannot be provided
without resort to speculation, the VA
examiner should so state and should
explain why it is not possible to
provide an opinion.
4. Schedule the Veteran for a VA
examination to ascertain the etiology
of sleep apnea. The claims file should
be provided for the examiner's review
in conjunction with the examination,
and the examination report should
indicate that the claims file was
reviewed. Following an examination of
the Veteran and a review of the claims
file, the examiner should provide an
opinion regarding the following:
a. Is a current obstructive sleep
apnea at least as likely as not (50
percent or greater likelihood),
caused by, or due to the Veteran's
service-connected asthma or
sinusitis? The examiner should
provide a detailed rationale for the
opinion.
b. Is a current obstructive sleep
apnea aggravated by service-
connected asthma or sinusitis? The
examiner should provide a detailed
rationale for the opinion.
If the VA examiner cannot provide an
opinion without resort to speculation,
the examiner should so state and should
explain why it is not possible to
provide an opinion.
5. Following the completion of the
requested actions, the claims on appeal
should be readjudicated. If the claims
remain denied, the Veteran and his
representative should be provided a
Supplemental Statement of the Case
(SSOC) and afforded an opportunity to
respond. The case should then be
returned to the Board.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
______________________________________________
MATTHEW D. TENNER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs